Question to the Ministry of Justice:

To ask His Majesty's Government what assessment they have made of the trends in the funding of private prosecutions; and what steps they are taking to ensure that privately-funded prosecutions are not misused in ways that are counter to the public interest.

Under s.17 of the Prosecution of Offences Act 1985 the court has the power to order the payment from central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by them in the proceedings.

Responsibility of assessing claims and administering payment of criminal claims out of central funds for work done in the magistrates’ court and Crown Court are assessed by the Legal Aid Agency’s (LAA) Criminal Cases Unit (CCU) unless the court summarily assesses the claim under s.17(2B) of the Prosecution of Offences Act 1985.

Information about central funds expenditure, including private prosecutions, is published on a quarterly basis within the LAA’s official statistics. The statistics provide useful management information to inform policy and legislative changes. A copy of the relevant data is attached.

The Justice Select Committee (JSC) considered safeguards in private prosecutions in 2021. They found that private prosecutions are rigorously tested, and weak ones filtered out. The Government agrees that, in most cases, existing safeguards work to prevent private prosecutions being misused.

In accordance with recommendations set out in the JSC report a private prosecutions register has been established for the magistrates’ courts in England and Wales. This enables the court or an authorised legal adviser, deciding whether to issue a summons to commence proceedings, to identify whether an application has already been determined or has been made by a vexatious litigant so that it can, where appropriate, be refused expeditiously.

The Criminal Procedure Rules have been amended so that they list the circumstances in which magistrates’ courts may refuse to issue a summons. The rules now also require summonses that are issued on the application of a private prosecutor to identify the prosecutor. This is intended to make it easier for defendants to refer their case to the Director of Public Prosecutions to consider taking over the case under s.6(2) of the Prosecution of Offences Act 1985.

As set out in its response to the JSC report, the Government is committed to introducing legislation to limit the amount of costs a private prosecutor can recover from central funds, mirroring the arrangements already in place for private paying defendants, where recoverable costs are capped at legal aid rates.